A will is a written statement of the way in which a person wishes to have his or her property distributed after their death. A codicil is an amendment to a will.

Anyone over the age of 18 years who has the necessary capacity (is of sound mind) may make a will. Nearly

everybody owns some property and would like to pass it on to relatives or friends after death. Accordingly, it is advisable for everybody to make a will

What if I don’t have a Will?

If a person dies without making a will (they die “intestate”) then their estate will be distributed according to a statutory chain of inheritance contained in the Succession Act 2006 (NSW). This effectively assumes that the deceased person would have intended to benefit their next of kin – their spouse and children however, the proportions are not what most people wish or expect to happen with their assets.

The statutory scheme does not provide for specific items to be given to particular persons, the for the situation where the deceased person wanted to give a larger share to one relative or another or did not wish to make a gift to a certain relative at all. To ensure that your property is passed to the people you choose, you should take the time to make a will.

When should I make a new will?

A person should make a new will if they marry, as marriage revokes a will, unless it is stated to be in contemplation of marriage. A new will should also be made if the testator divorces or experiences a major change in circumstances which would make the provisions of a previous will no longer suitable. It is a good idea to revise a will on a regular basis, say every 5 years, to make sure that it still represents your wishes.

What is an executor?

An executor is a person or persons appointed to handle the estate after the testator (the person making the will) dies and ensure their wishes are carried out. When choosing an executor, you should be sure that the person concerned is prepared to be executor and has the ability to deal with the matters which arise. It is a good idea to appoint 2 executors or alternate executors so that if one, for some reason, is not available, the other one can act.

What property can be left in a Will?

Some testators wish to leave specific items to particular people. There is no problem with this, so long as the items are clearly described and the beneficiaries are clearly identified.

Care must be exercised if the property concerned is a car or boat or some other item which the testator is likely to change from time to time. Real estate (houses and land) can be left by a will provided that the testator is the sole owner or owns the property with another person as “tenants in common”. If a house is

owned a joint tenants, as is the case with many properties owned by married people, when one dies, it will automatically go to the survivor (and does not form part of the estate, so the will in respect of such assets is not relevant).

Benefits under life insurance policies and superannuation are not usually distributed by will. These policies will be paid to beneficiaries nominated by the owner. Some nominations are binding and others are not. If the estate is nominated as the beneficiary or there is no nomination at all, the proceeds will be distributed as set out in the deceased’s will.

Why have a Statement of Testamentary Intention?

Where beneficiaries are being left significantly smaller or larger gifts than other beneficiaries, such as children having unequal benefits given by the Will, some testators wish to have a Statement of Testamentary Intention prepared which is effectively a statement by the testator as to why a beneficiary got more or less than may have been expected. In some cases, they are used in evidence if there is a claim on the estate.

Contact us

We can assist you with drawing up a will to have your estate distributed in accordance with your wishes and so as to best position your estate to defend any claim made against your estate after your death under the Succession Act 2006 (NSW).

We can also draft wills incorporating testamentary trusts to assist in minimizing the prospects of successful claims against your estate and protecting your estate’s assets from family law or creditor claims for the benefit of your beneficiaries whilst allowing the use of tax minimisation strategies.

Call one of our Estate Planning Lawyers for free initial telephone advice on your circumstances and estate planning issues on (02) 9525 8688.